Recent decisions on interference interpret restrictions more broadly than in the past
Two recent decisions by the Commission des Relations du Travail, Quebec’s labour relations board, “unfairly” restrict an employer’s right to freedom of speech, according to Montreal lawyer Gabriel Granatstein with the firm Norton Rose.
The first decision stems from a meeting between a Matane, Que., homecare service provider and its workers. The session was voluntary and covered topics ranging from apprenticeship programs to the upcoming Christmas party. The tenor of the meeting changed, however, when a unionized worker asked the CEO for an update on negotiations.
The CEO deferred the question to the vice-president of the union who chose not to respond. As a result, the president of the board of directors and the CEO informed employees of the status of talks themselves, and mentioned that it was the union that decided to suspend negotiations.
The Commission said the CEO’s behaviour amounted to an unlawful interference into union affairs, especially since the meeting took place two weeks before the collective agreement expired and during a tense period when negotiations had broken down.
The Commission added the company’s approach was more reprehensible because it knew, or should have known, the union executive was required to keep secret the details of negotiations.
The second case concerned an employer’s response to a negative press release issued by the union representing its workers.
According to the union, the work environment at the Carrefour youth employment agency in Rimouski was deteriorating and staff turnover was high. At the time of the complaint, there were 14 grievances pending.
The union issued a press release harshly criticizing the employer over the appointments of two new hires, both from outside the agency. The employer subsequently addressed the press release during a weekly meeting with employees, deploring the union’s tactics.
Shortly after, a union advisor gave a radio interview and accused the employer of wasting public money. In response, the employer issued a memo to all union members condemning the union’s media campaign and barring employees from speaking to journalists.
While the company argued it was merely setting the record straight, the Commission accused the employer of targeting employees’ emotions by making negative remarks about the union’s actions. As well, by prohibiting employees from speaking to the media, the Commission says the company suppressed a legitimate means of employee action.
“It seems somewhat shocking,” says Granatstein. “An employer should be allowed to respond honestly to criticism.”
The 1996 decision Syndicat canadien des communications, de l’energie et du papier, section locale 194 v. Disque Americ Inc., commonly referred to as the Lesage decision, established six criteria as legitimate restrictions on an employer’s right to freedom of speech in Quebec.
Granatstein says the recent Commission decisions have interpreted those restrictions “in a much broader way” than it has in the past.
“The impact is that an employer who reads that may feel very restricted in communicating with employees,” he says.
While decisions by the Commission are not binding, Granatstein says in a time of greater social and electronic communication it’s easier for employees to “write without worrying about the possible damage” of their words.
“In an era where a union can file a press release in minutes and have more reach than ever before, it’s very important that employers can respond factually,” he says.
However, he notes a subsequent decision by the Commission may have swung the pendulum back a little. In that case, Laval University posted on an internal website a brief summary, without comment, of its final offer to the union.
The Commission noted the information was only accessible to those who wanted to read it and denied the union’s request for an injunction to remove it.
“These cases are, hopefully, apparitions,” says Granatstein. “They’re somewhat of an outlier in Quebec.”
